November 09, 2008

The CRA -- The Best Law You've Never Heard Of

by publius

Obama may need to send former Congressman Bill Archer a Christmas card this year – it should read “thanks to you and yours for helping me reverse Bush’s last-minute regulations.” Archer, you see, sponsored a little known 1996 law that could soon become Obama’s new best friend.

As you probably know, the Bush administration is implementing a series of “midnight rules” before they leave town. And as Hilzoy noted earlier, the incoming Obama administration is examining ways to reverse these and other Bush rules. Interestingly enough, an obscure Gingrich-era law called the “Congressional Review Act of 1996” (CRA) could help the Dems prevent these rules from taking effect. It’s been used just once – by the Bush administration to overturn last-minute Clinton ergonomics regulations. But maybe it’s time to dust it off and take it for a spin.

By coincidence, I was doing some administrative law research, and came upon this law in a treatise – I had never heard of it. And I suspect I’m not alone. (Though when I got home, I googled and noticed that Professor Peter Shane had beat me to the punch. He has a good backgrounder there.)

Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.

To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.

However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.

In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.

The backstory here, of course, is that the GOP Congress was trying to limit Clinton’s authority (perhaps thinking they would win the 1996 election). Clinton ultimately signed the CRA though – presumably because it was a small part of a larger omnibus bill that included the line item veto.

In any event, it doesn’t really work when the government is divided. For instance, the Democrats couldn’t really use it last term because Bush would veto it. Similarly, Congressional Republicans couldn’t use it because Clinton would veto any rule repeal. But with all-Democratic government, it's obviously much easier to repeal any last-minute Bush regulation.

And that, my friends, is change you can believe in.

(One note of caution, however, is that Senate holds could impede the repeal -- I don't really know how these work though. Anyone?)

Comments

I'm pretty sure I'm not the only one who remembers perfectly clearly this article in the NY Times from last May about the 560 day rule. It's hardly obscure.

"One note of caution, however, is that Senate holds could impede the repeal -- I don't really know how these work though. Anyone?"

What don't you know? Any Senator can, under the Standing Rules, anonymously and secretly put forward a slip putting a hold on any legislation. Since 2007, however, a hold can only be secret for 6 days. And generally speaking, it's become hard in the last couple of years to be very anonymous, as more and more Senators will affirm that it Wasn't Them. Did you have a specific question? Need a pointer to the Standing Rules? It's Rule 7.

Specifically, this: "2. Until the morning business shall have been concluded, and so announced from the Chair, or until one hour after the Senate convenes at the beginning of a new legislative day, no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent"

No unamimous consent, no consideration of given bill, resolution, etc.

It's not a typo. Clinton's OSHA issued standards on workplace ergonomics that were killed by the incoming Bush regime. Jordan Barab, a worker safety activist, was spurred to start his outstanding blog Confined Space by that very rollback.

Bush types mocked the regulations as silly, but injuries to people working at computer screens and keyboards all day long are just as real and unnecessary as any other workplace hazard, if not as lethal. Bush's base didn't want the regs gone because they were silly, but because it cost them money.

I'm glad your question prompted me to revisit Confined Space. Jordan had a great way of clearing away the smoke of procedural-liberal bamboozlement and getting to the heart of issues:

the right to a safe workplace wasn’t bestowed upon us by concerned politicians or employers who were finally convinced that “Safety Pays.” The right to a safe workplace was won only after a long and bitter fight by workers, unions and public health advocates. ... The current movement to transform the agency into nothing but a coordinator of voluntary alliances is a betrayal of that promise and those lives.

Do Senate holds make any sense? I'm all for checks and balances, but this is absurd -- why give a single legislator this kind of absolute power? It didn't work well in the Roman Republic, and even there the tribunes couldn't veto anonymously.

According to wikipedia (thanks for the link, Gary!), the point was to give Senators a chance to study the legislation at their leisure -- but there are much more straightforward ways to do that, such as requiring repeated hearings of a bill over a week unless overridden by unanimous consent. And, that would not need (limited) anonymity.

I don't know if you went so far as to read this footnoted debate, Crafty Trilobite, which illuminates some of the arguments.

I think the fact is that saying "The ability to place a hold would allow that Senator an opportunity to study the legislation and to reflect on what it means before moving forward with further debate and voting" is a bit disingenuous. The prior sentence has a great deal more to do with the history and reality: "The original intent of these sections were to protect a Senator's right to be consulted on legislation that affected the Senator's state or that they had a great interest in."

It's been a guarded privilege of Senators to be able to safeguard their states industries and interests, and in some cases it's simply used as horsetrading blackmail.

Obviously, it's a power easily subject to abuse, which is why it's been reined in somewhat in recent years. Whether it should be abolished remains, of course, entirely up to the 100 Senators, and it's up to them to decide whether the loss to themselves in ability to hold up something that might truly seriously be something they really care about is worth putting up with some abuse. After all, Senators who abuse it can have revenge taken on them in many ways.

I think it's hard to make an accurate judgement of that without being a lot closer to the Senate than I am, myself. Senate rules and procedures can get extremely arcane; I know more than the basics, but I've only scratched the surface.

On the subject of Senate holds, KagroX (a former Congressional staffer) did an outstanding job of describing the real-world political process surrounding them in this post.

There are many positive aspects to political blogs and online communities, but one of the most valuable is the opportunity for experts to help demystify for us rabble these important but little-understood processes that have huge effects on our lives.

Therefore (given the Daily Kos article reference by the last commenter) a hold would not work in this case.
A hold is basically a threat to filibuster, which in minor legislation is equivalent to a one-person veto, since without unanimous consent one senator could theoretically force the Senate to spend a week to pass a single bill.
However, it is worthless in major legislation, when the Senate may be willing to spend a week to pass it if necessary, and it would be useless in this case, since debate time is limited anyway.